2001

26 Fla. L. Weekly D335a

Insurance — Personal injury protection — Attorney’s fees — Error to cut off insured’s entitlement to attorney’s fees as of date insurer tendered check payable to insured and two entities with competing claims where insurer should have determined that competing claims were illusory — Insurer faced with competing claims for PIP benefits may withhold direct payment to insured and issue joint check to competing claimants or interplead funds only when competing claims involve factual or legal issues that insurer cannot be expected to resolve on its own — Private hospital was ineligible as matter of law to have valid lien — Hospital registration form which insurer believed contained assignment of benefits listed different insurer as carrier — No error in denying collision benefits based on finding that there was no evidence that insured did not receive full value of his automobile from settlement with other driver involved in accident

26 Fla. L. Weekly D278a

Insurance — Personal injury protection — Attorney’s fees — Interest — Plaintiff in action against PIP insurer was entitled to award of attorney’s fees and statutory interest where insurer failed to verify claim within 30 days, and delayed payment on claim until it received proof of coverage — Burden is on insurer to verify claim within 30 day period, and insurer’s failure to do so was not excused by fact that insurer initially received incorrect information

26 Fla. L. Weekly D1103a

Attorney’s fees — Offer of judgment — Insurance — Uninsured motorist — Action against underinsured motorist and UM carrier in which UM carrier rejected insured’s offer to settle for policy limits — Where final judgment against UM carrier was conformed to policy limits, error to use the amount of the award in jury verdict, rather than the amount of the final judgment, to calculate whether the judgment obtained was at least 25% more than insured’s rejected offer for judgment and determine that insured was entitled to section 768.79 attorney’s fees — Claim that statute violates equal protection guarantee of Florida Constitution rejected as being raised for first time on appeal and lacking merit

26 Fla. L. Weekly D2870a

Attorney’s fees — Offer of judgment — Insurance — Contingency risk multiplier should not be used to compute attorney’s fees awarded pursuant to offer of judgment statute — Conflict acknowledged

26 Fla. L. Weekly D2227b

Insurance — Commercial general liability policy — Coverage — Attorney’s fees assessed in suit on behalf of former resident of insured adult assisted living facility — Question certified: Can an insured recover reasonable attorney’s fees as “damages” from its liability insurer when the attorney’s fees were awarded to a prevailing plaintiff pursuant to section 400.429, Florida Statutes, against the insured, and the insurance contract provides the insurer “will pay on behalf of the insured all sums which the insured shall become obligated to pay as damages because of injury to which this insurance applies caused by a medical incident which occurs during the policy period?

26 Fla. L. Weekly D1568bNOT FINAL VERSION OF OPINION
Subsequent Changes at 26 Fla. L. Weekly D2227b

Insurance — Commercial general liability policy — Coverage — Attorney’s fees — Liability of adult assisted living facility’s liability insurer for attorney’s fees assessed in suit on behalf of former resident of facility under section 400.428 — Appeals — Brief opinion from appellate court is of doubtful precedential value — There is no indication in section 400.429 that legislature intended to impose any liability for attorney’s fees directly on liability insurer absent language in insurance contract assuming such liability — Insurance contract providing coverage for “damages because of injury to which this insurance applies caused by a medical incident which occurs during the policy period” did not include liability coverage for attorney’s fees — Attorney’s fees are not damages, but are ancillary to damages, and not part of a substantive claim — Attorney’s fees are separate type of relief requiring special language before they may be assumed to have been included in a damage award in policy

26 Fla. L. Weekly D12a

Attorney’s fees — Justiciable issues — Where insurer which paid uninsured motorist benefits to its insured sued the two tortfeasors against whom its insured had claims, but voluntarily dismissed the case after it was unable to locate one of the tortfeasors whose testimony was necessary to prove liability against the other, trial court erred in awarding attorney’s fees pursuant to section 57.105 — Under applicable version of statute, attorney’s fees could only be awarded if there was lack of justiciable issues when complaint was initially filed — Trial court erred in concluding that there were no justiciable issues because insured filed suit on basis of accident report which would not have been admissible in evidence, where it was not accident report, but rather the testimony of the second tortfeasor, which would have been the basis for the case against the remaining tortfeasor, and there is no evidence in record to show that insurer knew it would never be able to locate the second tortfeasor when it filed suit

26 Fla. L. Weekly D1818a

Insurance — Automobile — Attorney’s fees — Where insurer initially denied insured’s claim that his automobile had been stolen, but thereafter settled claim and sent payment to lienholder without advising insured of amount or terms of settlement, and refused to furnish insured with settlement documentation after insured filed breach of contract action, insured was entitled to award of attorney’s fees — Court erred in denying award of attorney’s fees to insured because insurer’s failure to cooperate with insured caused an unnecessary continuation of lawsuit — Payment for loss did not vitiate insurer’s failure to deal fairly and in good faith with its insured

26 Fla. L. Weekly D1146aNOT FINAL VERSION OF OPINION
Subsequent Changes at 26 Fla. L. Weekly D1818a

Insurance — Automobile — Attorney’s fees — Where insurer initially denied insured’s claim that his automobile had been stolen, but thereafter settled claim and sent payment to lienholder without advising insured of amount or terms of settlement, and refused to furnish insured with settlement documentation after insured filed breach of contract action, insured was entitled to award of attorney’s fees — Although trial court properly granted summary judgment for insurer in insured’s breach of contract action after insurer eventually furnished insured with copy of check it had sent to lienholder as payment for loss of automobile, court erred in denying award of attorney’s fees to insured because insurer’s failure to cooperate with insured caused an unnecessary continuation of lawsuit

26 Fla. L. Weekly D1204a

Attorney’s fees — Proposal for settlement — Insurance — Uninsured motorist — Where insured brought claim against uninsured motorist insurer and insured’s husband brought loss of consortium claim against insurer, plaintiffs’ proposal for settlement which did not allocate the amount between the two claims was invalid — When two offerors make a proposal for settlement to one offeree, the offeree is entitled to know the amount and terms of the offer that are attributable to each offeror in order to evaluate the offer as it pertains to that party — Conflict certified — Error to apply contingent fee multiplier where there was no evidence presented that relevant market required contingency fee multiplier to obtain competent counsel, that attorney was unable to mitigate risk of nonpayment, or that any of the factors set forth in Florida Patient’s Compensation Fund v. Rowe were applicable